-^^i^-^ws 



SECOND EDITION. 



OUR 



NATIONAL CONSTITUTION : 



ITS ADAPTATION 



STATE OF WAR 



INSURRECTION. 



A Treatise by the / 
HON. DANIEL A G N E W, 

PRESinENT JUDGE SEVENTEENTH JUDICIAL DISTRICT, PENNA. 



PHILADELPHIA: 
C. SHERMAN, SON & CO., PRINTERS. 

186 3. 



From an Address of Hon. Edioard Everett, delivered before the Boston 
Union Club, Thursday, April 9, 1863. 

Gentlemen of the Union Club: 

In that year (1789) the Federal Constitution went into operation in the 
United States ; the great political consummation of the design of Providence 
in the discovery and settlement of America ; the happy framework of some of 
the wisest and best men that ever lived, intended to effect the extension of 
civilization in the shortest possible time, over a vast continent lying in a state 
of nature; to provide a city of refuge for the starving millions of Europe; to 
prepare the way for the civilization and Christianization of Africa by the re- 
turn of a portion of her children from the house of bondage, and to combine 
upon a scale of unprecedented magnitude, the homebred and fireside blessings 
of small States and local administrations with the security, influence, and 
power of a great empire. For seventy years it has been working out these 
great results ; it has conferred upon the rapidly increasing population of the 
country a degree of general prosperity never equalled ; it has welcomed the 
surplus and suffering multitudes of Europe to the enjoyment of a state of well- 
being never before vouchsafed by Providence to the same extent to the sons 
of men ; and not without the imperfections, and the errors, the woes and, I am 
sorry to add, the wrongs, which attend all human things, the incidents neither 
of republics nor of monarchies, but of our common, frail humanity, it has con- 
ferred upon more than two generations an amount of good, with an exemption 
from the sacrifices and trials which have afiiicted other States, altogether with- 
out a parallel in history. 

And now the great question which we have to settle is, shall this mighty 
aggregate of prosperity perish, or shall it endure? Shall this imperial heritage 
of blessings descend unimpaired to our posterity, or shall it be ignominiously, 
profligately thrown away? Shall the territory of the Union, lately so happy 
under the control and adjustment of the national and State governments, be 
broken up into miserable fragments, sure to be engaged in constantly recur- 
ring border wars ; and all lying at the mercy of foreign powers, or shall it pre- 
serve its noble integrity under the aegis of the National government? Admit 
the right of the seceding States to break up the Union at pleasure, nay, of each 
and every State to do so, and allow them to enforce that right by a successful 
war; — deny the authority of the Central government to control its members, 
and how long will it be, before the new Confederacies created by the first dis- 
ruption, shall be resolved into still smaller fragments, and the continent be- 
comes a vast theatre of civil war, military license, anarchy, and despotism? 
Better, at whatever cost, by whatever sacrifice, settle the question at once, and 
settle it forever. 

But it may be asked, how can men support the Administration in the con- 
duct of the war, if they do not approve its measures; how, I ask, in return, 
can any free government carry on a war, if every one is to stand aloof, who does 
not approve all its measures? That the war must be carried on, till the rebel- 
lion is subdued, is the all but unanimous sentiment of the loyal States. It is 
as much the interest of the South as of the North to hasten this consumma- 
tion, for she suffers infinitely more than the North by the continuance of the 
war, and there can be no return to a state of general and permanent prosperity 

[Continued on third poge of cover.} 



SECOND EDITION. 



OUR 



NATIONAL CONSTITUTION 



ITS ADAPTATION 



STATE OF WAR 



INSURRECTION. 



A TREATISE 



HON. DANIEL AGNEW, 

President Judge Seventeenth Judicial District, Pennsylvania. 




PHILADELPHIA: 
C. SHERMAN, SON & CO., PRINTERS. 

18 6 3. 



OUE NATIONAL CONSTITUTION. 



My subject is the adaptation of the Federal Constitution to a 
state of insurrection. 

Hoping that I may succeed in presenting some clear views of 
the change wrought by war upon this framework of National life, 
and of the dormant energies it starts into activity, I shall endea- 
vor to remember that a popular lecture demands more than close 
logic and dry detail. 

The transition our country has undergone, is exquisitely pain- 
ful. Plunged by a wicked rebellion, from a state of peace and 
high prosperity, into an abyss of ruin, she presents a spectacle 
unexampled in the past, — save in that rebellion, described in the 
grand epic of Milton, when the race itself was buried beneath 
the desolation of the fall. 

How blest was the charm in the poet's lines, which, in earlier 
days, you have repeated with swelling heart and highborn 
hope : 

" Columbia, Columbia ! to glory arise, 
The queen of the world, and the child of the skies !" 

And you felt how dear to you was the country that gave you 
birth, or in whose happy bosom you found an asylum from the 
wrongs and oppressions of other lands. But if the America of 
sixty years ago could thus inspire the poet, and furnish to his 
lay a subject more noble than ever Calliope breathed in heroic 
numbers, or Homer sang, what was the America of three short 
years ago, when she proudly stood the cynosure of nations, the 
home of liberty, and the exemplar of republics! 

0, my country ! if ever I could wish the fire of genius to light 
up the dark chambers of my soul, and inspire my heart with the 



6 

poet's fervor, as well as the patriot's love, it would be to describe 
thee as thou wert, and as, to my fond, confiding hope, thou 
seemedst destined ever to be! 

From the pine-clad hills of Maine to the grassy glades of 
Texas ; from the busy marts of the Atlantic to the golden gate 
of the Pacific, — bearing the fruits of every clime, abounding in 
the products of every zone, — this delightful home of man spread 
its vast fields of culture, its exhaustless mines, and its countless 
avenues of trade, to a busy, a happy, and a prosperous people. 

No dream of Utopia ever saw man so favored, or scene so fair. 
The gifts of Providence, held by no miserly hand, showered 
down abundance, far above ordinary wants. Never had gaunt, 
lean-ribbed Famine stalked through the land, calling for heca- 
tombs to appease his hungry sacrifice. 

Labor, unlike that of older lands, eking out a scanty subsist- 
ence, rewarded here, ever produced a surplus ; while the door to 
learning, wealth, and fame, opened to the humble and the high. 

Her commerce whitened every sea, and anchored in every 
port. Bounding over mountains, leaping oceans, and crossing 
the Antarctic, her sons overcame every obstacle, — unsealing the 
closed ports of Japan, sounding the Dead Sea, and laying bare a 
South Polar continent. 

That bright constellation, which sparkled upon the flag of 
liberty, but emblematized the Union of States ; which, plant- 
ing its first signal station on the crest of Mount Washington, 
and, pausing for a moment on the tops of the Alleghanies, 
faltered not until it had spanned a continent, and rested on the 
the peaks of the Golden State. 

So stood this Federal Union in 1860, a synonyme of power, 
the temple of freedom, and a light to the world, when South 
Carolina, raging with diabolism, and drunken with passion, fran- 
tically cut the golden cord of Union, which bound her to liberty, 
prosperity, and honor; and like a bark suddenly burst from her 
moorings, rushed upon the foaming sea of Secession. This was 
on the 20th day of December, 1860. On the 7th, 11th, 12th, 
19th, and 28th of January, 1861, Mississippi, Alabama, Florida, 
Georgia, and Louisiana, respectively, and Texas on the 1st day 
of February, passed their ordinances of secession, and plunged 
into the same frightful gulf of ruin. 



On this first day of February, 1861, while the old administra- 
tion was yet in power, and before the Federal Government had 
picked up the gauntlet of war, thrown down by Secession, let 
us pause a moment, to consider the true character of secession, 
in reference to the Constitution of the United States. 

The world is governed by names. Never was a great crime 
in national life committed under its appropriate appellation, but 
wicked men have ever sought to dignify or justify it under the 
name of some virtue. Call it patriotism, call it honor, or glory, 
or what you will, and veil it under the mild term, secession; 
but before the first day of February, 1861, secession was trea- 
son,- — treason of the plainest stamp, as defined in the Constitu- 
tion; its avowed purpose the overthrow of the Government, its 
accomplishment by force of arms. 

"Treason against the United States" (says the Constitution) 
"shall consist only in levying war, against them, or in adhering 
to their enemies, giving them aid and comfort." 

Fortunately, the phrase "levying war" received a settled inter- 
pretation in the best days of the republic. In the trial of Aaron 
Burr, C. J. Marshall held this term to be technical, borrowed 
from the English statute, and he adds, " It is scarcely conceiva-, 
ble that tl^e term was not employed by the framers of the Con- 
stitution in the sense which has been aflSxed to it by those from 
whom we borrowed it." 

"Levying war," says Lord Hale, in his Pleas of the Crown, 
"is direct, when the war is levied directly against the Govern- 
ment, with intent to overthrow it ; such, for instance, as holding 
any of the Government's forts or ships, or attacking them, or 
delivering them up to the rebels through treachery." 

In the United States vs. Fries, it was said, " If a body of men 
conspire or meditate an insurrection to resist or oppose the ex- 
ecution of any statute of the United States by force, they are 
guilty of a high misdemeanor ; but if they proceed to carry such 
intention into execution hy force, they are then guilty of treason 
by levying war." 

In the trial of the Christiana rioters in this State, Judge Grier, 
following this early interpretation of the fathers, laid down the 
law of treason, thus : " That the levying war against the United 
States is not necessarily to be judged alone by the number and 



array of troops. But there must be a conspiracy to resist by 
force, and an actual resistance by force of arms, or intimidation 
of numbers. The conspiracy and the insurrection connected with 
it, must be to effect something of a public nature, to overthrow the 
Government, or to nullify some law of the United States, and 
totally to hinder its execution or compel its repeal." 

In Bollman's case, C. J. Marshall said, " It is not the inten- 
tion of the Court to say that no individual can be guilty of this 
crime, who has not appeared in arms against his country. On 
the contrary, if war be actually levied, that is, if a body of men 
be actually assembled for the purpose of effecting by force a 
treasonable purpose, all those who perform any part, however 
minute, or however remote from the scene of action, and are 
actually leagued in the general conspiracy, are to be considered 
traitors." 

Thus it becomes clear to the commonest understanding that 
secession for the avowed purpose of overthrowing the Constitu- 
tion and authority of the Federal Government in the seceding 
States, supported by armed troops, and the seizure of forts, 
arsenals, vessels, and arms, is the act of "levying war," defining 
treason in the Constitution ; and is treason of the plainest stamp, 
according to the current of judicial decision, from the^arliest to 
the latest days. 

In order to display the true character of secession as treason, 
we have therefore only to ascertain its purpose and the means 
of its accomplishment. 

Fortunately for the discussion, the purpose of secession, is 
written on its own frontlet. The South Carolina ordinance of 
secession, after repealing the ordinance ratifying the Constitu- 
tion in 1788, proceeds thus: "And that the Union now subsist- 
ing between South Carolina and other States under the name of 
the United States of America, is hereby dissolved.'' 

Some of the ordinances of secession are more specific. That 
of Virginia adds : " And they do further declare, that the said 
Constitution of the United States is no longer binding on any 
citizen of this State." 

Upon the adoption of the South Carolina ordinance, a question 
immediately arose in the Convention, what is the new status of 
affairs ? Said Mr. Gregg, in debate on this point, " Ahev South 



Carolina abrogated the Constitution of the United States, are its 
laws still in force ? I think not. All the laws of Congress fall 
instantly to the ground on the act of secession." 

Said Mr. Calhoun, " We have pulled a temple down that has 
been built three quarters of a century. We must clear away the 
rubbish to reconstruct another. We are now houseless and 
homeless, and we must secure ourselves against the storms." 

Accordingly, steps were instantly taken to erect this new 
temple, this new home, resulting in a Convention of the seceding 
States at Montgomery, on the 6th of February, 1861, the estab- 
lishment of a constitutional and provisional Government for the 
new Confederate States, and the election of Mr. Davis, and Mr. 
Stephens, as President and Vice-President. 

It being the avowed purpose of secession to overthrow the 
Constitution and Government in the seceding States, and estab- 
lish the Confederate in their stead, it remains only to look at 
the means of accomplishment. 

The South Carolina ordinance was adopted on the 20th of 
December, 1860. On the 23d, eighty minute men or Sons of the 
South ariived at Charleston, and tendered their services to Go- 
vernor Pickens. On the 24th, the Governor issued his procla- 
mation under the ordinance of secession, declaring South Carolina 
a separate and sovereign State, with the right to levy war, con- 
clude peace, &c. On the 28th, the palmetto flag was raised over 
the custom-house and post-office ; and the South Carolina troops 
took possession of Castle Pinckney and Fort Moultrie. On the 
29th, the United States revenue cutter " William Aiken" was 
surrendered to the authorities of the State. At this time the 
Governor was tendered troops from other parts of South Caro- 
lina, and from Georgia and Alabama. On the 31st, the troops 
took possession of the United States arsenal at Charleston, con- 
taining many thousand stands of arms, and large military stores. 

On the 3d of January, 1861, troops were despatched by the 
Governor of North Carolina, to take possession of Fort Macon, 
the forts at Wilmington, and the arsenal at Fayetteville. On 
this day Fort Pulaski was seized by the State troops of Georgia. 
On the 4th, the arsenal at Mobile was taken. On the 5th, Fort 
Morgan was taken, and garrisoned by Alabama troops. On the 
9th, the "Star of the West," carrying provisions and troops to 



10 

Fort Sumter, was fired into by the South Carolina State troops, 
from Morris Island and Fort Moultrie. On the 13th, Fort Bar- 
rancas and the Navy Yard at Pensacola were seized. The com- 
mandant telegraphed to the Government, "Armed bodies of 
Florida and Alabama troops appeared before the gates of the 
Navy Yard, and demanded possession. Having no means of 
resistance, I surrendered, and hauled down my flag. They are 
now in possession." 

The design of this detail is to exhibit, by numerous facts, 
admitting of no denial or evasion, that before the middle of 
January, 1861, the purpose of overthrowing the Constitution, 
laws, and Government of the United States, was executed by 
armed force and military means, — by bodies of armed troops, 
acting under the authority, and throughout the territory of the 
seceded States, in prosecution of the common design to secede. 
The detail might be further continued, showing the movement of 
large bodies of troops, the seizing of public property, vessels, 
and munitions of war; the building of batteries, planting of 
cannon, (lonstructing of defences, and all the various means of 
war. 

Thus we have a clear case of levying ivar against the United 
States, and treason , not on the low grade of a local insurrec- 
tion, but upon the extraordinary scale of State rebellion; not 
merely to resist or nullify a Imv, but to overturn the Government 
itself, — a treason, full to the very brim, before Sumter fell, 
before the new Administration took the reins of power, and 
before the meeting of the Peace Convention, on the 5th of Feb- 
ruary, 1861. 

I would impress upon every heart, with vivid distinctness, the 
depth of meaning concealed under this mild w(ird. Secession ; its 
avowed purpose, the overthrow of the Constitution ; its means of 
accomplishment, military force; its completeness, before the 1st 
of February, 1861, — before it could be averted, except by that 
salutary force, which those then in power thought it better to 
defer. 

There is a turpitude in this attempt to overturn our Govern- 
ment, unequalled in the annals of crime. No intellect can fully 
conceive its magnitude. Let it run out all the consequences the 
strongest mind can trace, and it still falls short of the truth. 



11 

What can equal that stupendous wickedness, which lays in ruins 
the fairest fabric of free Government ever reared by mortal 
hands ; when a dissolved Union, a violated Constitution, and a 
trampled flag, became the signal of intestine strife, of fratricidal 
war, and a ruin so vast, so comprehensive, so universal, that 
fancy, in her wildest flight, can scarcely reach its utmost bound ? 

But secession did not end where we left it. The moving ava- 
lanche, thundering down its Alpine steeps, carried with it, and 
engulfed in its debris, large masses in other States. Congress 
terminated on the 4th of March, 1861, and the then Administra- 
tion laid down the reins, without any provision to repel the war 
thus levied against the Constitution and Federal Union. Sum- 
ter soon fell, and the Government had to meet the grave ques- 
tion. What powers has the Constitution, under rebellion, to assert 
its supremacy, repel the war levied against it, coerce traitors 
into obedience, and resume its authority over the rebellious 
States ? 

So long had we been resting in the arms of peace, lulled by 
dreams of security, and so trifling had been previous attempts at 
insurrection, that, as a people, we were unconscious of the sleep- 
ing powers of the Constitution. It was a state of war, mar- 
shalled by a powerfully organized rebellion, and conducted by 
States, the Constitution was called to encounter; and the ques- 
tion arose, What is its inherent vigor to meet the emergency? 

Some of its powers relate to a state of peace, others to a 
period of war;^; and the fact first striking the attention of a jurist 
is, that no correct exposition can be made of the latter, in a 
frame of mind that looks alone to a state of peace, before the 
clangor of arms has aroused these dormant energies. It must 
not be overlooked, that as the war class rises, the peace class 
necessarily falls ; not because they become extinct, but because 
the inherent vigor of the Constitution itself brings the war 
powers into play, to meet the exigency, and relaxes the latter, to 
admit of the free use and full scope of the former. 

The two classes, to the extent that they impinge, are inherently 
contradictory, and cannot be exercised together. For instance, 
in a time of peace, life, liberty and property are sacred, and can- 
not be taken away, except by due process of law. Apply these 
guarantees of peace to a time of war, and they would forbid tlie 



12 

killing of rebels with arms in their hands, taking them prisoner, 
or capturing their property ; nor could treasonable letters and 
supplies be searched and seized, and the carriers arrested, with- 
out warrant. Apply the rules of peace to war, and martial law 
cannot be declared, no matter where, or what its necessity. 

It is, therefore, manifest that when the Constitution gives 
power to raise armies and navies, organize the militia, and use 
them to execute the laws, and suppress the insurrection, by its 
own authority it necessarily suspends the guarantees of peace, as 
to all persons and obstacles standing in the way of executing the 
laws, and suppressing the insurrection. If they oppose these 
powers, whether as rebels in arms, and the property or means 
they use ; or their aiders and abettors performing parts, no mat- 
ter " how minute or remote from the scene of action," they stand, 
as it were, on the track of the engine, and it runs them down. 

Everything in nature must succumb to greater force. The 
peace powers of the Constitution were no longer adequate to 
maintain its supremacy. Officers, executive and judicial, had been 
expelled from the seceding States, or compelled to yield up their 
authority. The voice of the magistrate and marshal was lost 
amid the din of arms. 

Force, therefore, was all that was left to the Constitution, as 
its defence and its remedy. 

This leads to two questions : What is the authority in the 
Constitution to employ force, and how shall it be applied ? 

Let us group the powers relating to this point, and we shall 
see their efficacy better. 

The first class is of a negative character, operating by way of 
prohibition, viz. : 

" No State shall enter into any treaty of alliance ox confedera- 
tion, grant letters of marque and reprisal, coin money, emit bills 
of credit," &c. Art. 1, § 10, cl. 1. "No State shall, without 
the consent of Congress, lay any duty of tonnage, keep troops or 
ships of war in time of peace, enter into any agreement or com- 
pact with another State, or with a foreign power, or engage in 
war, unless when actually invaded, or in such imminent danger 
as will not admit of delay." Ibid., cl. 2. 

Those negations must be noticed, because all their prohibition^ 
have been infringed by the seceding States, in connection with 



13 

the war they have levied against the Federal Government ; and 
have thus contributed in laying a foundation for the exercise of 
the positive powers of the Constitution. 

These are as follow : 

" To lay and collect taxes, duties, imposts, and excises, to pay 
the debts, and provide for the common defence and general wel- 
fare of the United States." Art. 1, § 8, cl. 2. 

" To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water." lb., cl. 12. 

"To raise and support armies," &c. lb., cl. 13. 

" To provide and maintain a navy." 

" To make rules for the government and regulation of the 
land and naval forces." lb., cl. 15. 

" To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions." lb., 
cl. 16. 

" To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the 
service of the United States," &c. lb., cl. 17. 

" To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers ; and all powers 
vested by this Constitution in the Government of the United 
States, or in any department or officer thereof." lb., cl. 19. 

Thus a bare enumeration of the prohibitions of the acts of 
States leading to combinations to levy war against the United 
States, and of those powers which enable the United States to 
provide means, to carry on war, cause the laws to be duly ex- 
ecuted, and to suppress insurrectittvis, discloses an authority in 
the Constitution of the most express and plenary kind, to put 
down rebellions, whether of States or individuals, by force of 
arms. 

Let us now notice the statutes of Congress, passed to carry 
out these high powers, and vesting in the President the authority 
to enforce the execution of the laws, and put down insurrections. 

The Act of 28th February, 1795, provides that " whenever the 
laws of the United States shall be opposed, or the execution 
thereof obstructed in any State by combinations too powerful to 
be suppressed by the ordinary course of judicial proceedings, or 
by the powers vested in the marshal in this act, it shall be lawful 



14 

for the President of the United States to call forth the militia 
of such State, or of any other State or States, as may be neces- 
sary to suppress such combination, and to cause the laws to be 
duly executed." 

The Act of 3d March, 1807, provides, — " In all cases of in- 
surrection, or obstruction to the laws, either of the United States, 
or of any individual State or Territory where it is lawful for the 
President of the United States to call forth the militia for the 
purpose of suppressing such insurrection, or of causing the laws 
to be duly executed, it shall be lawful for him to employ, for the 
same purpose, such part of the land and naval force of the United 
States as shall be judged necessary, having first observed all the 
prerequisites of the law on that subject." 

In the case of Martin vs. Mott (12 Wheaton, 19), the Act of 
1795 was passed upon by the Supreme Court of the United 
States, and it was decided that, under the Constitution and this 
act, the President is the sole and exclusive judge whether the 
exigency has arisen to call forth the militia, and his decision is 
conclusive on all persons. 

The provisions of the Constitution relating to the President 
are these : 

His oath of office : " I do solemnly swear that I will faithfully 
execute the office of President of the United States, and will, to 
the best of my ability, preserve, protect, and defend the Consti- 
tution." Art. 2, § 1, cl. 8. 

' " The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several 
States, when called into the'S^ctual service of the United States." 
Ibid. § 2, cl. 1. 

" He shall take care that the laws be faithfully executed." 
Ibid. § 3. 

To sum up these provisions of the Constitution and laws in a 
single sentence, we see, — 

That, when the laws are obstructed or opposed by combina- 
tions too powerful to be suppressed by the ordinary civil process, 
the President, who is the constitutional head of the army, navy, 
and militia, and who is constitutionally enjoined by oath to pre- 
serve, protect, and defend the Constitution, and to take care that 
the laws be faithfully executed ; is commanded to use the whole 



15 

military power of the United States to suppress! such combina- 
tion, and cause the laws to be duly executed ; and that he is the 
sole and exclusive judge of the facts calling the exercise of this 
power into requisition. 

We have seen that treason was complete by the levying war in 
South Carolina before the 1st day of January, 1861, and a 
combination too powerful to be suppressed by civil means existed. 

It is, therefore, clear that the duty, the poive?; and the means 
provided by the Constitution and laws to suppress the insurrec- 
tion by force of arms were plenary. No Government, however 
despotic, could confer greater power, or provide better means 
than the Constitution and laws thus grant to the President; and 
this (I beg you to mark it) without a single proviso or restric- 
tion, or a letter of instruction as to the mode in which he shall 
proceed. 

The insurgents had " levied war." Nothing less than a counter 
war could repel theirs. The President was bound by Constitu- 
tion and law to carry on a war to suppress the rebellion. 

This brings us to the second question, — How shall the military 
force be applied ? The Constitution and laws here are silent. 

They give the injunction, but prescribe no rule or mode of 
action. The whole is left to the judgment of the President. 
Nor- is this strange. Congress could not foresee all the move- 
ments and resorts of the enemy, and those adhering to him ; nor 
the embarrassments attending the measures to subdue him. A 
war of force, from its nature, knows no rules of action, nor how, 
nor where the force must be used to meet the exigency. Con- 
gress cannot foresee the infinite variety of circumstances attend- 
ing war, and therefore legislated most effectively in vesting in 
the President the whole power of the Government, and leaving 
him to act upon the circumstances. Hence the means to be 
used, and expedients resorted to, in the prosecution of the war 
to subdue the enemy, and defeat the schemes of his aiders and 
abettors, from necessity, not of choice, rest exclusively in the 
sound discretion of the President, subject only to the customary 
rules of civilized warfare. 

The necessities of warfare are often unforeseen, immediate, 
and controlling. The commander-in-chief, may, therefore, 
declare martial law, define what is contraband of war between 



16 



the enemy and loyal citizens, blockade his ports, capture and 
destroy his property, arrest those who give him aid and comfort 
by conveying information or encouragement, stirring up sedition 
seducing troops, and hindering military action, and may in 
short, resort to every suitable and necessary means demanded by 
the exigency. The exigency proceeds from the acts of the 
enemy or his abettors. It is this exigency, therefore, he must 
meet. 

Here it is so many who criticize the powers of the President 
fall into error, forgetting to trace the source of the war powers 
he exercises to the Constitution itself. They overlook the fact 
that the injunctions of the Constitution, and the Acts of Con- 
gress in pursuance, are a grant o^ express, unlimited, and uncon- 
ditional authority to use the whole physical force of the nation 
according to his own judgment, in quelling traitors, their aiders 
and abettors, and compelling them to submit to the laws- and 
that this express grant, without limitation, for a purpose involv- 
mg the very life of the nation, and the defence and preservation 
of the Constitution, on every principle of law, logic, and neces- 
sity, requires the exercise of all incidental powers necessary to 
the execution of the main purpose of suppressing the insurrection. 
We have now the means of testing every act of the President 
in this war against rebellion. 

Thus, it is the purpose of the Constitution, and his duty to 
put down insurrection. To this end, the whole military force is 
at his command. All the powers incident to the express grant 
and essential to its exercise, are vested in him. In the use of 
these powers he acts according to his own sound discretion, upon 
the circumstances as they arise, and subject to no restraint, but 
the customary laws of civilized warfare. 

I wish at this point in coming to treat of the controverted 
acts of the President, to throw in a word of caution as to the 
province of this lecture. It is not to defend their propriety but 
to exhibit their constitutionality. Constitutional power is' one 
thing, the expediency of its exercise is another. I desire there- 
fore, studiously to avoid every field of partisan controversy in 
relation to the practice or policy of the Government in making 
military arrests, suspending the writ of habeas corpus, proclaiming 
military emancipation, and declaring martial law. 



17 

Preliminary to an examination of some of these controverted 
acts, let me define a little more sharply the difference between 
the state of constitutional rights, as they exist in a time of peace, 
and in a period of war. Some are natural, and exist independently 
of all constitutions: such as life, liberty, property, and the es- 
sential means of preserving and protecting them. In time of 
peace none c;m be taken away, except by due process of law. 
But how are they affected by a state of war? The rebels and 
their abettors are citizerrs, who owe allegiance, but have cast it 
off. The civil authority is not adequate to reduce them, and force 
is resorted to by authority of law. 

The Constitution now turns against them, and the rights it 
guaranteed during peace, it now authorizes to be taken away, if 
necessary to reduce them to submission. The terrible earnestness 
of war would be made ludicrous by a rebel in arms quoting the 
Constitution to his captors. Imagine him sword in one hand, and 
Constitution in the other, saying, "No one shall be deprived of 
life, liberty, or property, without due process of law" — "The 
privilege of the writ of habeas corpus shall not be suspended." 
But is this quotation any less preposterous, in the mouth of a 
rebel sympathizer, aider or abettor, who furnishes arms, informa- 
tion, medicines, or aid to the enemy ; or paralyses the arm of 
suppressing force, by discouraging enlistments, counteracting the 
call of the militia, or by any other act of disloyalty, directly 
tending to support the cause of the rebels? And what difference 
does it 'make where he performs his part, or how minute it is, in 
this grand drama of ubiquitous treason? 

What a solemn mockery is the injunction to "preserve, pro- 
tect and defend the Constitution," and "to take care that the 
laws be faithfully executed," if the means of suppressing traitors 
and rebels, put into the Executive hands by the Constitution and 
law, may be wrested from his grasp, by some peace-breathing 
clause of the same Constitution ? 

The rights of the loyal also yield to the necessities of war. 
The law-abiding peaceful citizen, must shoulder his musket, and 
lay down his life upon the battle-field ; his liberty is restrained 
by discipline; his property taken and destroyed for a military 
purpose. If he appeal to the Constitution, though it frowns 
not on him, as upon the rebel, in sorrow it turns from him the 



18 

mild features of peace, and exposes to view only the grim visage 
of war. 

If then the stern necessity of war may demand the sacrifice 
of fundamental, God-given rights, what exemption, from the 
same necessity, can be claimed for the minor guarantees of the 
Constitution? On what higher foundation rests the freedom of 
speech and of the press? the right to have due process of law, 
and the writ of habeas corpus ? They are but the outposts set to 
guard the higher rights of life, liberty, ^and property. 

The necessity which demands the sacrifice of the higher rights, 
certainly may call for the surrender of the lesser, when public 
safety and national life demand it. The necessity calls into life 
and activity the war powers, and these sanction the means neces- 
sary to their proper exercise. The requisite means flow therefore 
logically and incontestably from the Constitution itself. 

The necessity is supposed to override the Constitution. , But it 
is not so. The Constitution, recognizing the necessity of force, 
provides for its employment; and Congress, carrying out the 
authority, places the whole disposable force of the nation in the 
hands of the President, without limitation or instruction as to 
its use, except it be to declare the purpose to suppress insurrec- 
tion, and cause the laws to be executed. But when the Presi- 
dent comes to use the military arm, his use depends necessarily 
on the obstacles and opposition to be overcome; and these con- 
stitute the exigency he is called to meet. He must act accord- 
ingly- 

In acting on the necessity, it is clear, therefore, he acts under 
the Constitution, and not against it. In judging of the neces- 
sity, he exercises a sound discretion. I say sound discretion, 
because whenever the law intrusts its agents with a discretion, 
it does not clothe them with arbitrary or wilful power. 

It means a reasonable discretion, which, judged of by all the 
attending circumstances, is such as a man of just views and 
proper motives, must pronounce to be right and fitting to the 
circumstances. 

Every just man, not blinded by sinister motives or incurable 
bias, in forming his opinion of the soundness of this discretion, 
will reject partisan clamor, and will make great allowance for 
the superior opportunities of knowledge of the President, and 



19 

the public necessity of suppressing many facts essential to a cor- 
rect judgment. 

The language of the Supreme Court, in Martin vs. Mott, is 
opportune: "It is no answer (say the Court), that such a power 
may be abused; for there is no power that is not susceptible of 
abuse. The remedy for this, as well as for all official miscon- 
duct, if it should occur, is to be found in the Constitution itself. 
In a free Government, the danger must be remote, since, in 
addition to the high qualities which the Executive must be pre- 
sumed to possess, of public virtue, and honest devotion to the 
public interests, the frequency of elections, and the watchfulness 
of the representatives of the nation, carry with them all the 
checks which can be useful to guard against usurpation or wanton 
tyranny." 

Tiius we have found the true constitutional and legal test of 
every act of the President, in prosecuting the war. Is it a part 
of the necessary means used to subdue the rebellion, and cause 
the laws to be executed, in pursuance of the war powers vested 
in him? And is it such as a sound discretion should adopt? I 
use the terwi President, to call attention to the fact that these 
powers are exercised by him, not merely as Commander-in-chief 
of the army and navy, but as chief Executive. 

His being Commander-in-chief, is but one of the authorities 
committed to him, while both the Constitution and law commit 
to him, as President, the duty of taking care that the laws be 
duly executed, and of repelling invasion and suppressing insur- 
rection. He is made Commander-in-chief but as a means to 
enable him to execute these duties as President^ 

In applying the test just mentioned, it must be remembered 
that war, like private redress, must be judged by its circum- 
stances. There can be no Procrustean rule, to draw every case 
to its own standard. A father who would cowhide a child of 
tender years, would overstep the bounds of just punishment. 
But if his son, almost of age, incorrigibly wayward, and of nearly 
equal strength, should turn upon him with the fury of a tiger, 
an excess over ordinary punishment would be sanctioned by the 
necessity. So this rebellion is not to be judged by rules which 
apply to a local uprising, or a "Whiskey Insurrection" in West- 
ern Peiinsvlvania. Here one-third of the States and popula- 



20 

tion of the Union, occupying a vast territory, separated by 
passable and much of it by only ideal boundaries, and possessing 
vast means of warfare, is in arms against the remainder. The 
rebellion is organized by States, and conducted by a Confederate 
Government. While the number of men and means of warfare 
are so much greater in the North, these are countervailed by the 
magnitude and difficulty of the field of operations, and the impos- 
sibility of concentration to a decisive result. 

So wide, so extensive, so numerous these operations, no capa- 
city can grasp, combine, and carry forward their details ; no 
human foresight can provide for derangement of plans, and 
unexpected defeat of their execution. The South is full of 
mountains, defiles, and unfordable rivers, yet possesses a vast 
system of railroads adapted to successful defence. The whole 
South, by this means, concentrating upon Richmond as a centre, 
or rather one of the foci of an ellipse, stands ever ready to 
invade, as well as to repel. The Confederate Government sits 
there, like a spider in the midst of its web, ready to run to the 
point of disturbance, as often as the vibrating filament gives 
notice of approach. North and South touch on thousands of 
miles of coterminous territory, rendering illicit intercourse easy, 
indeed, impossible of restraint. 

The population of the two sections is intertwined by numerous 
ties of blood, interest, opinion, and sympathy, filling the North 
with men of Southern birth and education, and with persons of 
strong bias towards the South. Many of the alleged grievances 
of the South have been subjects of bitter strife and partisan dis- 
cussion, in which men of the North have vied with those of 
the South. The very Departments of Government have been 
polluted in their inmost recesses, by disloyalty and secret 
treason. 

This is but a brief and faint outline of the diflSculties to be 
met and overcome, in the exercise of the power to quell the re- 
bellion. No wonder it seems to be impossible nearly, and the 
nation must begin to discover the magnitude of the task, cast 
upon a single mind, which yet, no matter how aided by counsel 
and numbers, must superintend and be held responsible for all. 

The enemy has constant information of our armies, their num- 
bers, movements, and designs. This cannot be arrested upon 



21 

thousands of miles of contiguous territory, with an imprudent, 
sometimes vicious press; with men of rebel sympathies, and many 
actual spies and traitors to overstep them. What civil process 
will remedy the evil, and avert the danger ? What civil prosecu- 
tion will operate by 'precaution or prevention, to save us from 
defeat and disaster; admitting even, that it miglit "drag its slow 
length along" to 'punishment. Our brave soldiers fight well, 
but they are led to ruin and to sacrifice. They move, but the 
Richmond spider forewarned, runs from his centre, and meets 
them at every outer thread of his dangerous web. 

Must the Government be ever thus exposed to the machinations 
of secret sympathy and treason ? Must the wheels of war be 
blocked at every step? Then what remains but to restrain these 
acts by military means. There must be a power to muzzle the 
press when it runs mad; and to arrest and confine men, when 
they exhibit their traitorous proclivities. It is a question of life 
or death to the nation. 

The civil power is inadequate, and the military must save it, 
or it perishes. By the exigency, the security of peace becomes 
incompatible with the danger of war; and the guarantees of the 
former give way to the necessities of the latter. This necessity 
brings into exercise the Executive discretion, under the war 
authority which removes the danger by the constitutional use of 
force. 

Let us now examine some of these minor guarantees of the 
Constitution, and see how unsound much of the clamor against 
their alleged infraction has been. 

"Congress shall make no law abridging the freedom of speech 
and of the press." 

Mark the language, — Congress shall make no law. 

The freedom of speech and of the press is vital in a republic, 
founded upon the will of the people and popular intelligence. It 
is therefore essential that Congress should be prohibited from 
encroaching upon this liberty, lest passionate majorities, in 
times of high excitement, should crush out the rights of the 
minority. 

But does it follow because of this prohibition on the law-making 
power, that in time of war and great public exigency, any one may, 
with impunity, publish by mouth or by press, matter affording 



22 

information and encouragement to the enemy, spreading sedition, 
destroying confidence in tiie means of suppressing insurrection, 
producing dissatisfaction and mutiny in the army, and preventing 
enlistments? 

To pass a law abridging the freedom of speech and of the 
press, is one thing, and to take military cognizance of an abuse 
of it, which directly thwarts the plans and destroys the ability 
of the Goverjiment to prosecute the war against the enemy, is a 
totally different thing. If they be one, then Congress even 
cannot, by reason of the constitutional barrier, pass a law to 
correct the abuse. 

But it is clear, that whenever these abuses stand directly in 
the way of the exercise of the military powers delegated to sup- 
press rebellion, and cause the laws to be observed, these powers, 
granted without proviso or restriction, rise superior to the obstacle 
and clear it from their path. Take an. example. 

An expedition is fitting out in New York harbor of momentous 
importance. The secret is wormed out by that omnipresent 
treason, which permeates every quarter of the North, and a New 
York paper publishes the destination and design, the number of 
vessels and forces, and everything useful to the enemy. Or per- 
haps the army is on the march, but at the very moment when 
success should crown its efforts, the plans are thus divulged ; the 
enemy seizes his advantage, and our army is defeated and deci- 
mated. 

Thus, every time the Executive arm is raised to strike the 
military blow, it is paralyzed. What civil remedy will compensate 
for disaster, restore life to the fallen dead, or replenish the cap- 
tured stores? Yet all this wrong is done on loyal territory, where, 
it is said, no military authority can or will be permitted, from a 
want of constitutional power, to arrest the guilty author of 
disaster, and prevent its recurrence. 

If it be true doctrine, that because the offender stands on loyal 
ground, when he blocks the wheels of war, and brings defeat on 
our arms, or paralyzes the efforts of suppressing force, and no 
power can be exercised under the military authority, the efforts. 
of the Government may cease, for such a doctrine strikes down 
its ability to bring the war to a successful conclusion. 

The right of search, seizure, and arrest has been much criti- 



23 

cized, and the sections of the Constitution rehitive thereto have 
found a place in the Message of the Governor of New York, to 
wit : 

"The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures 
shall not be violated. And no warrant shall issue but upon 
probable cause, supported by oath or affirmation, and particularly 
describing the place to be searched and the person to be seized." 

"No person shall be held to answer for a capital, or otherwise 
infamous crime, unless upon presentment of a Grand Jury, except 
i^ cases arising in the land or naval forces, or in the militia, 
■when in actual service in time of war or public danger; . 
nor be deprived of life, liberty, or property, without due pro- 
cess of law." • 

I have already referred, to the higher rights of life, liberty, 
and property, and shown that the necessities of war demand 
even their surrender when necessary, and that the lawfulness 
of their privation springs from the Constitution itself, whose 
powers are suited to the exigency. As a necessary conclusion, 
the minor guarantees of the Constitution cannot claim greater 
immunity, and therefore the inferior guards contained in the 
clauses just read must yield to the same overruling exigency, 
which demands that every right standing directly in the path of 
the exercise of the war powers must give way to them. 

But the right of search and seizure is not forbidden in the 
Constitution, as ignorant or wicked clamor would have us sup- 
pose. It is only unreasonable search or seizure that is. The 
Constitution is not guilty of the folly of protecting individual 
right at the expense of public safety. The common law right of 
arrest still remains. 

For example, arrests may be made without warrant by inferior 
officers, such as constables, and even by private persons. (See 1 
Chitty, C. L., 15 to 22.) Every man present at the commission of 
a felony, or a dangerous wound, is bound to arrest the offender, 
under pain of fine and imprisonment, if he escape. 

On probable suspicion, a private person may arrest where a 
felony has been committed, and probable ground of suspicion 
will protect him from an action. Where a felony has been com- 
mitted, a constable may arrest a supposed offender on the iuforma- 



24 

tion of others, without a positive charge, and without a personal 
knowledge of the circumstances. 

And (says Chitty, p. 21) a constable may justify an imprison- 
ment, without warrant, on a reasonable charge of felony made to 
him ; although he afterwards discharge the prisoner without 
taking him before a magistrate, and although it turns out no 
felony was committed by any one. 

In the case of the United States vs. John Hart (1 Peters, C. 
C. R., 390), Judge Washington decided that, driving the stage 
containing the mail at a furious rate through the streets of Phila- 
delphia, was a breach of the peace; and that, notwithstanding 
the Act of Congress against stopping the mail, and, I may add, 
the Constitution, upon the principles of the common law, the 
constable was authorized, without warrant, to prevent the peace 
from being broken. 

But the constitutional provision itself has received a judicial 
construction in Pennsylvania, whose Constitution is nearly iden- 
tical in terms. (Wakcly vs. Hart, 6 Binney, 318.) Said C. 
J. Tilghman, one of the purest and soundest judges that ever 
graced the bench, — " But the plaintiff insists that, by the Con- 
stitution of this State, no arrest is lawful without warrant issued 
on probable cause, supported by oath. Whether this be the true 
construction of the Constitution is the main point in the case. 
It is declared in the 9th article, section 7, ' that the people shall 
be secure in their persons, houses, papers, and possessions, from 
unreasonable arrests ; and that no warrant to search any place, 
or seize any person or thing, shall issue, without describing them 
as nearly as may be, nor without probable cause, supported by 
oath or affirmation.' 

" The provisions of this section, so far as concern warrants, 
only guard against their abuse by issuing them without good 
cause, or in so general and vague a form as may put it in the 
power of officers who execute them to harass innocent persons, 
under pretence of suspicion; for, if general warrants were 
allowed, it must be left to the discretion of the officer on what 
persons or things they are to be executed." Now mark the 
language of the Judge : " But it is nowhere said that there shall 
be no arrest without warrant. To have said so would have 
endangered the safety of society. The felon who is seen to 



25 

commit murder or robbery must be arrested on the spot, or suf- 
fered to escape. So, although if not seen, yet, if known to have 
committed a felony, and pursued with or without warrant, he 
may be arrested by any person. 

" And even where there is only probable cause of suspicion, a 
private person may, without warrant, at his peril, make the 
arrest. I say at his peril, for nothing short of proving the felony 
will justify the arrest." (That is by a private person on suspi- 
cion.) " These are principles of common law," says the Judge, 
" essential to the welfare of society, and not intended to be altered 
or impaired by the Constitution." 

In the name of patriotism, public safety, and justice, can it be, 
that, when the mere property of an individual is invaded, a petty 
officer, on suspicion or bare information, may arrest without war- 
rant ; yet when treason, the highest crime against society and huv, 
runs riot, when a dangerous rebellion and civil war are raging, 
and the very life of the nation endangered, the highest officer in 
the Government, armed with supreme authority to quell insur- 
rection, and cause the laws to be executed ; sworn, not merely to 
support, but to preserve, protect and defend the Constitution ; 
cannot seize or imprison, without clear proof and judicial warrant, 
those who spread disaffection, cause mutiny, bring disaster on our 
arms, aid and abet rebels and traitors, and paralyze the very 
arm he is using to subdue rebellion ! 

Without further discussion, let me test the provisions of these 
clauses by an example or two. 

In the loyal city of New York, a secret mail exists, and letters 
to rebeldom are sent by sea, or posted by land. The mail-bag 
is aboard the vessel, or has reached the shore of the Potomac. 
According to the doctrine of peace, the traitorous pouch cannot 
be searched, the papers cannot be seized, nor the postman ar- 
rested, until a warrant is issued in due form of law; by which 
time the vessel has sailed, or the carrier has crossed and delivered 
the mail. So a vessel may be in loyal waters filled with contra- 
band of war; but the doctrine of loyal soil forbids its detention 
without due process of law. 

Thus, illustration might be heaped upon illustration, of the 
protection these clauses of the Constitution quoted by Governor 



26 

Seymour, afford to the cause of the rebels, if they are to be con- 
strued by the doctrines of peace. 

Let a peace view of the Constitution prevail, where the subject- 
matter arises on loyal soil, and the war powers lose all their 
efficacy. In a great domestic strife, such as this, whence does 
the arm of war derive its strength, its force to crush rebellion ? 
Certainly, not from rebel territory. That may be the field of 
achievement; but its power comes from loyal ground. There 
the greatest injury may be done — there alone, can its losses be 
repaired ? Those acts of disloyalty, therefore, though committed 
on loyal territory, which tend directly to defeat military action, 
or paralyze the suppressing force, must come under military 
cognizance, or the war powers of the Constitution sink into utter 
impotence and insignificance. 

But it may be said, these illustrations are examples of a plain 
breach of loyalty, and the power to search, seize, and arrest in 
such cases, may be admitted. True, they are plain, and it is 
because they are so, they are put. - The question is, — what con- 
stitutional power has the President, in the exercise of his military 
authority, to search, seize and arrest within loyal territory, and 
distant from the field of army operations? These illustrations 
prove the power, and this is the point of dispute. 

If cases not so plain are put, they do not disprove the power, 
but simply question the soundness of the discretion which directed 
its exercise. 

What though the President may have erred in some of the 
arrests made ; what though his reasons for others have not been 
given ; Avhat though clamor has condemned, and partisan contro- 
versy used them for its purpose ; indeed, what though the power 
has in some instances been abused : yet none of these destroy the 
power, nor disprove the military authority to search, seize, arrest 
and detain, in the exercise of a sound discretion to meet the exi- 
gency of war. 

" The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it." 

This prohibition is expressly limited to a time of peace; or 
when no public danger exists. It is solely a restriction on Con- 
gress to set aside the privilege of the writ in the absence of a 



27 

necessity. Its place in the Constitution, its context, its scope, 
and the exception prove this. But in a time of rebellion, the 
power to suspend is clear. If, therefore. Congress confer on the 
President war powers incompatible with the free privilege of the 
writ, and this express grant necessarily carries with it the 
military authority to arrest and detain for military purposes, 
which would be defeated by the unrestrained use of the writ, the 
privilege necessarily falls before the grant of power by Congress 
under the Constitution itself. In such case, in a time of rebel- 
lion, the President acts not in violation, but under the Constitu- 
tion, in exercising the powers thus conferred by law. In this 
case, the only question which can arise, is as to the soundness of 
his discretion ; or, in other words, has he abused the power con- 
ferred upon him ? 

This furnishes, also, an answer to the question, — If he possess 
constitutional authority, why is an act of Congress called in to 
protect him from prosecution ? Precisely for the reason that 
the soundness of his discretion, not the power, becomes the sub- 
ject of controversy. In a time of public danger, and high 
excitement, it is not fitting that an honest discharge of a delicate, 
but essential duty, should be subject to prosecutions calling for 
the divulging of the secrets of state, and subject to the irrita- 
tion of misguided opinion or enmity. 

Doubtful cases will render difficult the exercise of any power, 
however clear. Officers of the lowest grade, clothed with a 
sound discretion, are protected against honest errors of judg- 
ment. The President, therefore, should not be compelled to 
incur any unnecessary or unreasonable risk while acting for the 
public safety. 

But the power to suspend the privilege of the ivrit of habeas 
corpus is quite a diff"erent thing from the lawfulness or unlawful- 
ness of the arrest. If the arrest be lawful the writ cannot dis- 
charge. The authority of the President to arrest, like all other 
rightful authority, is lawful in itself when duly exercised. 
Whenever, therefore, he has the power to make a military arrest, 
his return is a full answer to the writ. Would it be competent 
to use the writ to discharge a rebel prisoner, captured with arms 
in his hands? Certainly not. But why ? Simply because his 
military arrest and detention are lawful. But if another, away 



28 

from the battle-field, be arrested, and the order of the President 
asserts that he has been in treasonable intercourse with the 
enemy, or that his acts were about bringing disaster upon our 
arms, and his arrest is, therefore, necessary, what will the habeas 
corpus effect in this case ? If the order of the President be not 
conclusive of the facts he asserts in this case, it is not so in 
the former ; and in every case, the President must be ready with 
proof to sustain his exercise of military authority. The power 
to hold the rebel taken in arms, and his aider and abettor, to 
prevent disaster, is one and the same. It is, therefore, not diffi- 
cult to see where the effort to suppress insurrection must end if 
the doctrine prevail that the habeas corpus, in time of rebel- 
lion, could be used to discharge from military arrest, regardless 
of the return made to it by the President. The truth is, the 
writ itself is ineffectual against the military order setting forth 
a proper case of arrest, although the privilege of having it may 
not be suspended. 

A more difficult branch of the subject now presents itself, not 
intrinsically, but because of the sphere of partisan controversy 
within which it is found, and the bitterness attending its discus- 
sion. My purpose is to avoid the exciting aspects of the eman- 
cipation question, and to deal with it only in reference to the 
constitutional, power of the President. 

The first step will be to embrace clearly the true purpose and 
character of the emancipation clause of the Proclamation of 
September 22d, 1862. It reads thus: "And on the 1st day of 
January, A. D. ISbS, all persons held as slaves within any State, 
or any designated part of a State, the people whereof shall then be 
in rebellion against the United States, shall be thenceforward 
and forever free; and the Executive Government of the United 
States, including the military and naval authority thereof, will 
recognize and maintain the freedom of such persons, and will do 
no act or acts to repress such persons, or any of them, in any 
efforts they maj^ make for their actual freedom." 

What is the character of this executive order? A learned 
gentleman, who resigned a high judicial position under the Gov- 
ernment, characterizes it as an executive decree for the repeal of 
valid State laws, and, assuming this as its true tenor, argues 
thence that it is not only above the powers of the President, but 



29 

beyond the authority of Congress. But this assumption is simply 
incorrect, and in viohition of the spirit and hinguage of the 
clause. How is an Executive order declaring free the slaves of 
States, the people whereof are in rebellion^ a repeal of valid 
State laws ? It is not a mere edict, but an act. Its purpose is 
to deprive rebellion of its means of support. In one sense, any 
capture or destruction of the property of a rebellious people at 
war with us defeats the State law, in so much that this law can- 
not protect the owner's title or possession. 

But why does it not protect ? Simply because the rebellion 
of the owner has made him amenable to a superior law. Within 
their proper sphere, the Constitution and laws of the United 
States are the supreme law of the land, so declared by the Con- 
stitution itself: "And the judges in every State shall be bound 
thereby, anything in the Constitution or laws of any State to the 
contrary notwithstanding." Every military act, when done 
under the authority and laws of the United States, is founded in 
supreme authority; and rights protected by State laws, whenever 
they come in conflict with this superior authority, must yield to 
it. The only question, therefore, which can arise, is, — whether 
the Executive act is under and in pursuance of the authority 
vested in him to take care that the laws shall be faithfully exe- 
cuted, and to suppress rebellion. If it be, then the State laws 
give way, not by way of repeal, but because they are inferior in 
authority. Thus the logic is inexorable, and the conclusion 
inevitable, that, if the emancipation measure be a military neces- 
sity, the rights of property of the slave-owners of States whose 
people are in rebellion, must give way to the necessity which 
brings the Federal power into play, and which has for its purpose 
the preservation of the life of the nation, and the defence of the 
Constitution itself. 

The right to slave labor is regarded, in the Slave States, solely 
as a right of property, no higher in character than other rights 
of property. As a mere question of property, it clearly opposes 
to the Federal authority no greater obstacle to capture or 
destruction. In applying to rebel property the Federal authority 
to capture or destroy, when this becomes a military necessity, 
there can be no difference as to the right of property, whether it 
is in slave labor, or in those articles which increase the ability 



30 

of the enemy to carry on the war. As a just measure of self- 
preservation, the belligerent destroys that which strengthens the 
power of the enemy to cope with him, or facilitates his military 
operations. He does not hesitate to burn bridges, or tear up a 
railroad, though it be the property of a private corporation, 
whose stockholders are women and minors. 

Why then stigmatize the Proclamation as an attempt to repeal 
State laws, higher than the authority of Congress itself? Why 
not meet the point fairly, admit the fact shown by the tenor of 
the paper itself, that this is an endeavor, on the part of the Pre- 
sident, to impress upon rebel slave labor the effects of Federal 
law, under an alleged military necessity to suppress rebellion, 
and then test the endeavor by the facts, to ascertain whether the 
Federal authority sanctions this exercise of power? 

It is one thing to err in an honest attempt to exercise dele- 
gated power, but a very different matter, to arrogate powers not 
delegated to any department of the Government. 

Again, the learned gentleman asserts the purpose of the Pro- 
clamation to set the slaves free, because a majority of the legal 
voters do not send representatives to Congress. It is singular 
that any dispassionate mind should wander so widely from the 
truth. The President does not propose to emancipate, because 
the people of the rebel States do not send representatives, but 
because the people, as such, the sovereign power of the State, 
have openly, by State acts, cast off allegiance, and the entire 
population is either in arms, or by their -means supporting those 
in arms. In effect he says to this rebellious people, by his military 
order, "If you shall so far reacknowledge the Federal authority, 
as to send representatives to Congress, I shall consider this as 
the evidence that the military necessity which produced this 
order no longer exists, and it and all its consequences shall be 
withdrawn." How can any unprejudiced mind see in this an 
intention or an operation to set the slaves free, because the 
people* will not send representatives ? What is this representa- 
tion in Congress but a condition — terms offered to the rebel 
States — the acceptance of which evidences that the exigency has 
ceased ? 

Another fault he finds is, that the Proclamation acts on loyal 
persons in the rebel States, that is, it does not except them. In 



31 

other words, he would have it defeat itself; for, as a military 
measure, to weaken the ability of the rebels to carry on the war, 
the exception would cripple its operation, rendering it uncertain 
and largely useless. lie forgets, also, that the Proclamation 
refers only to those States whose people are in rebellion, and 
who, by State acts — acts of sovereign power — have cast off alle- 
giance, and assumed to' dethrone the Constitution, and dissolve 
the Union. 

In what one of these rebel States, recognizing the Confederate 
Government only, do the owners of slaves fail to contribute to 
the i^aintenance of the power of the rebels to make war? Are 
there any of these so-called loyal persons, who withhold tribute 
from the usurping Government, or the product of the labor of 
their slaves from their armies ? 

If the order of emancipation be justified on the ground that 
it is lawful to strike down this grand power, servile labor, in the 
field, in the workshop, and on the fortification, which sustains 
the rebellion, and feeds its power to resist, then the misfortune 
that its effects alight upon the so-called loyal, falls within the 
same principle of military necessity which brings destruction and 
disaster to the innocent in other cases. It operates on them, not 
in spite of valid laws, but because the necessities of lawful war- 
fare demand it. 

Stripped of all false statements, the case comes back to the 
true test, — Is the Proclamation a military act, demanded by the 
exigency, as a military necessity, in the prosecution of the war? 

The question is a vast one, having its arguments, pro and con; 
and it is not surprising that, in a field so large, many should be 
unable to discover its confines. But, one thing must be con- 
ceded, — that he whose whole heart and miiid have been, for 
weary months, laboring throughout its whole extent, has a far 
greater knowledge of the facts which solve the question of neces- 
sity. Watching every movement; studying the effect of every 
operative cause; familiar with that knowledge, forbidden by 
public interest to be disclosed ; treading in memory the bloody 
soil of many an adverse battle-field, and feeling, to his inmost 
soul, the rebukes which misfortune, infidelity, incompetency, 
treachery, and a thousand ills, have showered on his head, — 
surely he should best understand the necessity which produced 



32 

the order. We who stand outside, at most can hut suppose, per- 
haps but guess at the grounds which justify it. My province is 
to illustrate the war powers of the Constitution, not to justify 
the President. 

In stating the grounds, therefore, which I suppose may be those 
that actuated him, I am but advancing reasons which might 
justify the order of emancipation as a military necessity. There 
may be other and better, of which I know nothing. 

How then stands the question of military necessity, so far as 
I can see it? For seventeen anxious months the strife had been 
going on. So far from subduing the enemy, victory had perched 
upon his standard, in many battles after May, 1862, and the 
armies of the Union were driven back in almost every quarter. 
Cincinnati and Louisville were threatened, Maryland invaded, 
and Pennsylvania hastily called to meet the coming foe, Washing- 
ton was beleaguered and the second Bull Run disaster had left 
our army demoralized. This was at the middle of September. 
Nothing then was wanting but a successful raid in the rear of 
the Capital, severing it from the North, finished by a blockade of 
the Potomac, to cut it off from its supplies. The peril was im- 
minent that the Government must surrender, or cut its way out 
with the loss of everything giving prestige to us as a nation. 

The Governments of Europe looked on with eager eyes. 
Already it had been proclaimed that the North fought for 
dominion only, the South for independence. In other words, the 
former for power, the latter for her altars and her homes. This 
was the carefully inculcated idea abroad. These were the cir- 
cumstances attending the deliberations which ushered in the 
Proclamation of the 22d of September. And though, at the date 
of its publication, the enemy had been forced, by the battle of 
Antietam, on the 17th, to recross the Potomac, the results were yet 
unknown; and he had crossed without the loss of a gun, retiring 
in order; while at Harper's Ferry the Federal loss had been im- 
mense. 

How had the enemy obtained these advantages, with a less 
force and fewer means? He was united and secret in his move- 
ments. The North was divided and its plans revealed. The 
draught of war upon his fighting material left his labor untouched, 
while it drew upon the farm, the workshop and the factory of the 



North. He occupied a territory so vast, so chequered with 
difficulties, war upon the grandest scale had failed to conquer it. 
His army was relieved in the entrenchments and on the fortifica- 
tions by the labor of slaves. Cut off from his usual source of 
supply, by land and sea, it was thought want would reduce him, 
and compel him to submit ; but again slave labor interposed to 
save him. The slave toiled in the field, the workshop, and the 
factory; and bread, munitions, and arms flowed in ample supplies 
to his armies and his people. But who was this slave ? A. traitor ? 
No — he had not rebelled. His instincts were for liberty, and 
taught him to look northward for its advent. He was loyal to 
the Union, though he had received but little for his love. Loyal 
himself, ^et his labor had been prostituted by disloyalty, and had 
served the rebel purpose, sustaining it, when otherwise it must 
have fallen before the power of the Federal arms. 

Here is a grand element of involuntary power, harnessed to 
the car of war by rebellion, and guided by treason. Here the 
military question arose. 

Rebellion cannot be conquered (as it then seemed in the gloom 
Avhich shrouded the Capital, and filled Pennsylvania with fear), 
until this element of power shall be extirpated. It stands in the 
road of our arms, and as a military necessity, it must be removed. 
Can it be detached ? can it be so reached and influenced as to 
leave the enemy weak and prostrate without it? 

This was the grave question to be solved at that dark hour. 
We can imagine the President communing with himself, thus: 

"I see, w^ith a clearness I cannot avoid, ,what it is true I have 
long known, but which, from reasons of policy, I have thought it 
unwise to touch, that this is the grand basis of Southern power, 
which, so long as it continues, must support the rebellion, and in- 
crease the difficulty of subduing it, while the energies of the 
North are becoming wasted in the struggle. 

"If I can inspire it with a hope of liberty, rendering it restless 
and uneasy, causing it to refrain from labor, and to deman i the 
wages of freemen, and thereby requiring greater vigilance at 
home, recalling men from the ranks, and preventing a con- 
scription of the entire fighting population. If I can detach 
it, wherever the progress of the Federal arms can reach it, 
by withdrawing from it, as the chief executive, the Federal 

3 



34 

protection hitherto accorded to it, I then accomplish more 
than the armies have done, or seem likely to do. I strike 
also a chord in the European heart, that will vibrate to the touch, 
and take from the war, the condemnation of a mere contest for 
power, putting farther off recognition, and rendering it more 
diflScult. 

" As the chief executive I will say to the slave, ' You are free, and 
the military and naval forces under me, shall, respect your right 
to liberty, and shall throw no obstacle in the way of your 
attempts at actual freedom.' His loyal heart, filled with a hope 
hitherto repressed, will take fire from the altar of liberty. He 
will throw down his shovel, his axe, and his hoe, and refuse to 
labor as before. The loud knocking at the Southern door, pro- 
duced by the slave, in his restlessness, uneasiness, and attempts to 
escape, and the pecuniary loss it threatens, will alarm the South- 
ern heart, and it will eventually grasp at the blessing of peace, 
and reacknowledge its fealty by a return to the halls of Con- 
gress." 

This is the true character of the emancipation clause. It was 
an Executive effort to detach from the rebel cause the involun- 
tary labor which fed and supported it. If successful, the rebel- 
lion must fail. The act was military, for it struck directly at 
the source of the enemy's supplies. It does not assume to legis- 
late ; it does not affect to repeal State laws. 

In effect, it is an offer of amnesty, an Executive appeal to the 
slaves, as persons, to abandon the cause of rebellion, and accept 
the protection of Government, in order to divert their forced 
labor from the support of treason. As a means then seeming, in 
time of national gloom and adversity, to be absolutely essential 
to the preservation of the Union and the life of the nation, it was 
proclaimed as a military act to meet the exigency. As a military 
act, it thus falls within the carte blanche of military power con- 
ferred upon the President, for the purpose of suppressing the 
rebellion and causing the laws to be faithfully executed. Whe- 
ther it will prevail or fail, it may be difficult to foresee. It may 
turn out to be an error, and may not accomplish the good it pro- 
mised ; but it is not the less justifiable in point of legality and 
authority, and 'cannot, therefore, be pronounced a usurpation of 
power. 



35 

The act is now past recall, and it is our duty, when the neces- 
sities of war demand all our loyalty, to trust that it will at last 
prove its wisdom as well as its lawfulness. If not, it is at most 
an error in the exercise, not an assumption, of the power. 

The Proclamation of the President of the 24th of September, 
is also the subject of criticism and censure. The complaint 
against it is, that it declares new offences, unknown to the laws, 
and proclaims martial law in the North, where no necessity pre- 
vails. 

But, what says the Proclamation itself? After reciting that 
"disloyal persons are not adequately restrained by the ordinary 
process of law from hindering" the draft of the militia, "and 
from giving aid and comfort in various ways to the insurrection," 
it proceeds : " Now, therefore, be it ordered, that during the 
existing insurrection, and as a necessary means for suppressing the 
same, all rebels and insurgents, their aiders and abettors within 
the United States, and all persons discouraging volunteer enlist- 
ments, resisting the militia draft, or guilty of any disloyal prac- 
tice, aff'ording aid and comfort to the rebels against the authority 
of the United States, shall be subject to martial law, and liable 
to trial and punishment by courts martial or military commis- 
sions." 

It will hardly be contended that rebels, insurgents, their aiders 
and abettors, are subject to no military cognizance, in a time of 
dangerous war. But is there a better reason for excluding from 
the same authority, persons discouraging volunteer enlistments, 
or resisting the militia drafts, or guilty of disloyal practices, 
affording aid and comfort to the rebels, and against the authority 
of the United States? What is the crime of the rebels? Resist- 
ance to the laws. What the lawful means of overcoming this 
resistance ? Calling out the militia of the States, volunteer or 
drafted. What is the discouragement of the enlistment, or re- 
sisting of the draft? A direct interference with, and obstruction 
of the law calling out the militia to suppress the rebellion, and 
to cause the laws to be faithfully executed. What is a disloyal 
practice, affording aid and comfort to the rebels, and against the 
authority of the United States? Treason and participation in 
the rebellion. Remember the language of C. J. Marshall. No 



matter how minute his part, or how remote from the scene of 
action, if leagued with the rebels, he is a traitor. 

What then is the substance of the whole objection ? That 
treason and insurrection may be rampant — that full power by law 
may be given to quell it by military means. But that if 
this military means be frustrated by disloyalty, it has no 
power of self-preservation. Was there ever an objection 
so suicidal of national life and contrary to sound reason ! The 
President, by the Constitution and the law, is bound to take care 
that the laws shall be faithfully executed ; but how are the laws 
for enlistment and drafting to be duly executed, if they may be 
obstructed in their execution, and the President have no power 
to enforce them, in a state of war and emergency ? And in what 
respect does obstruction to these laws in the North differ from 
obstruction to other laws in the South. 

But it is said there can be no emergency in the aff"airs of a 
people, wherein martial law can be declared beyond the limits of 
a particular district, and away from the actual field of army 
operations. 

Therefore, — says Governor Seymour, in his late message, 
" Martial law defines itself to be a law where war is. It limits 
its own jurisdiction by its very term." A very good definition, 
but wanting in the very marrow of it, when it comes to the ap- 
plication. "Where war is." But where is war? Where are its 
effects, its influences, and its sources of supply? Is it where 
men are fighting only, or is the nation at war, the North on one 
side, the South on the other? It is one section against the other. 
If Northern soil has not deeply felt the iron tramp of Mars and 
the horrors of conflict, it is its good fortune ; not because his 
banner does not float over it. In its Federal aspect, ours is a 
nation, one and indivisible, and this is a civil war involving its 
entirety. "When in a republic (says Vattel, § 292) the nation is 
divided into two opposite parties, and both sides take up arms, 
this is called a civil war." "A civil war (says he) breaks the 
bands of society and government, or at least suspends their effect; 
it produces in the nation two independent parties, who consider 
each other enemies, and acknowledge no common judge." It is 
not where the ring of the musket, and the roar of cannon are 
heard, that war is only ; but its field of operations covers the 



37 

whole domain of the nation. The disloyalist, who fills a vessel 
in New York harbor with arms for the South, on a trial for his 
treason, would find no pretext to save him, because the clangor 
of arms was not heard north of the Potomac. 

Doubtless the Governor, in his definition of martial law, 
would confine it to the narrow limits of army operations. But 
arms, munitions, and men, must come from a wider field ; the 
power to call forth the army to battle must precede the fight ; 
and must be a dead letter, if it be vigorless to deal with those 
who obstruct its execution. Then the sphere of war, in its acts, 
its influences, and its resources, is wider, extending over North 
and South. 

Can it, therefore, be maintained that martial law cannot be 
declared on loyal soil? 

Cincinnati was the theatre of martial law. There it was not 
the character of the soil, but the extent of the necessity, which 
justified. 

The power to wage war carries with it the authority to declare 
martial law. It is a need of warfare, and he who carries it on 
must judge of the necessity. To other minds the necessity may 
not appear ; still it belongs to him who has the right to declare 
it. The necessity is the mischief which this law is intended to 
remedy. The extent of the territory over which it operates 
must, therefore, be coextensive with the mischief it seeks to 
remove. 

But the language of the Proclamation has been disregarded. 
It is untrue that martial law has been declared in a general sense 
over loyal States. 

The civil law still prevails over all the North. The President 
has declared martial law only as to specified persons, and specific 
acts. It is only against rebels, insurgents, their aiders and 
abettors, and persons discouraging volunteer enlistments, resist- 
ing the militia drafts, and guilty of disloyal practices, affording 
aid and comfort to the rebels, against the authority of the United 
States. The purpose is to prevent the defeat of the very means 
put into his hands to suppress the rebellion. He cannot conquer 
without an army. He cannot call men to arms without power 
to compel them to come ; and he cannot maintain discipline if 
outside interference prevail. 



38 

This is no ordinary case of war, where the necessity for mar- 
tial law limits it to narrow confines. The antecedent relations 
of the two sections scattered the brands of disaffection all over 
the North. Treason, like a cutaneous disease, has spread over 
the population the virulent pustules of disloyalty, and many lie 
so hidden beneath the surface the most vigilant scrutiny cannot 
detect their presence. 

Is this war to endure always, or to end disastrously ? or must 
disaffection lurk in our midst, poisoning the streams of national 
life, and paralyzing the arm of force? Surely there is a power 
in military authority to extend the area of martial law, coequal 
to the field of mischief it is required to remedy. The true 
patriot, the philanthropist, the loyal man, never can doubt it. 

In conclusion, I trust I have kept within the limits assigned 
to this dissertation ; to discuss only the powers of the Constitu- 
tion, whether they relate to secession as treason; the right of 
military arrest ; its effect upon the writ of habeas corpus ; mili- 
tary emancipation ; or the power to declare martial law on loyal 
soil. Whether these powers have been exercised arbitrarily or 
justly I have left unsaid. Time and the voice of truth, when 
the feelings and impulses of the hour are past, will disclose their 
real character. If the President have erred, still few have 
doubted his integrity of purpose and loyalty of heart. 

0, how gj-and is the spectacle of an upright man breasting 
the pitiless storm of misfortune, injustice, and passion, in the 
discharge of high and holy duty ! The fate of a great nation 
hangs suspended on his arm ; and with his face turned upward 
toward heaven, as if to scrutinize the decrees of the Providence 
above, he stands, nobly determined to sustain and lift it above 
all human effort to destroy. Millions look to him for safety, and 
he feels the awful weight of responsibility crushing him almost 
to earth. But, with faith unmoved, hope, renewed, "springs 
eternal in his breast," and he marches onward to the goal of 
duty, 

" As some tall cliff, that lifts its awful form, 
Swells from the vale, and midway leaves the storm, 
Though round its breast the rolling clouds are spread, 
Eternal sunshine settles on its head." 



39 

And thou, my country! shall there be no hope for thee? 
Must thy light go out forever, — that light, which shone upon the 
past, like a beacon-fire to the tempest-tost, to guide our race to 
a peaceful rest? Can it be, that here, in this land of freedom 
and equal rights, disloyalty and treason will sap thy deep founda- 
tions? that the fabric of Free Government, so carefully wrought 
by patriotism and cemented in blood, shall fall into ruins, and, 
like a mound of moss-grown stones, marking some old and long- 
forgotten grave, thy ruins shall serve only to point to the last 
resting-place of Freedom and Republican Government ? 

But 0, kind Heaven, forbid this end ! And rather let me 
behold that hour, when, crowned with victory, the full-orbed sun 
of Freedom, rising upon the field of strife, and bursting the folds 
of battle, shall roll the storm of war away, and, pouring his 
eftulgent rays upon a happy and reunited people, shall flood this 
Union with one full stream of Liberty and Love! 



V 



on any other condition. That errors will be committed, errors of judgment 
certainly, errors of purpose perhaps, on the part of individuals, is sure to hap- 
pen in all wars. Commanders of armies, members of cabinets, members of 
Congress, Generals, Secretaries, and Presidents, are fallible men, subject to 
like passions as we are. I do not at all deny, that it is our right and duty to 
watch and criticize their conduct, but we must not forget that critics, editors, 
and orators, are also fallible. While we sit in quiet and safety by our firesides, 
and inveigh against those who bear the heat and burden of the day ; who carry 
upon their shoulders the thankless burden of official duty, and the heavy re- 
sponsibility of results, which oflen depend on the elements and on casualties 
beyond human control, we must keep in mind that we also have our interests, 
our prejudices and our passions, and that it is much easier to find fault, than 
to pursue any course of conduct which will escape censure in a fault-finding 
community. There are two ways of doing everything; and when duty con- 
strains us to find fault with the shortcomings of our rulers and our generals, 
we should, if possible, do it in such a manner, as not to give aid and comfort 
to the rulers and generals of the enemy. 

But it may be asked again, how can we support an Administration which 
adopts measures that we deem unconstitutional? I should certainly be a very 
unfaithful pupil of the political school in which I was trained, if I could ever 
hear the sacred name of the Constitution justly invoked, without respect, or 
yield to it anything less than implicit obedience. It is, however, as great an 
error to appeal to it where it does not apply, as to disregard it where it does ; 
and I must say that the study of our political history ought to teach us caution 
in this respect; for, from the formation of the Government in 1789 to the pre- 
sent day, there has not been an important controverted measure, — no, not 
one, — which its party opponents have not denounced as unconstitutional. It 
is one of the doctrines of the seceding school, that the government of the 
United States could not constitutionally wage war against a sovereign State. 
But how if the sovereign State strikes the first blow, fires on your vessels, bom- 
bards and captures your forts, threatens your capital, and invades the loyal 
members of the Union who refuse to join in the war of aggression? Few, I 
suppose, will doubt that the United States may constitutionally wage a war of 
self-defence against any enemy — domestic or foreign. But in waging this war 
of self-defence, we cannot, in the opinion of some persons with whom I have 
usually acted, and whose judgment I greatly respect, go beyond the powers 
specially granted by the Constitution to the General Government, for the pur- 
poses of ordinary administration in time of peace. This opinion seems to me 
to rest on a misconception of the authority under which war is waged. The 
Constitution authorizes Congress to declare war, to raise and support armies, 
and to provide and maintain a navy, and it clothes the President with the 
power of commander-in-chief. It goes no further. It prescribes nothing as 
to the enemy against whom the measures, by which, nor the ends for which 
the war may be carried on. It gives no more power to wage war with a foreign 
State, than with a domestic State; and it is as silent on the subject of block- 
ading the ports, as of seizing the cotton or of emancipating the slaves of a dis- 
trict in rebellion. The rights of war belong to the more comprehensive, in 
some respects the higher code, of international law, to which not the govern- 



\ 



LIBRARY OF CONGRESS 





012 028 293 1 



pennulipe* 
pH8J 



